Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1960 Supreme(SC) 68

SUPREME COURT OF INDIA
9th March 1960
P.B. GAJENDRAGADKAR AND K.N. WANCHOO, JJ.
Yellappagouda Shankarogouda Patil, Petitioner
Versus
Basangouda Shiddangouda Patil, Respondent.
Civil Misc. Petn. No. 530 of 1959.
Advocates appeared
Mr. C. K. Daphtary, Solicitor General of India (Mr. B. R. L. Iyengar, Advocate, with him), for Petitioner; M/s. K. R. Bengeri and A. G. Ratnaparkhi, Advocates, for Respondent.

Advocates:
A.G.Ratnaparkhi, B.R.L.Iyengar, C.K.BENGERI, C.K.DAFTARY, K.R.BENGERI

A certificate issued by the Collector under S. 10 of the Bombay Hereditary Offices Act, 1874 is valid and must be given effect to if the properties in question are assigned as remuneration to the Patilki office and are governed by the provisions of the Act.

Headnote:
HEREDITARY OFFICES ACT - CERTIFICATE UNDER S. 10 - VALIDITY - ADDRESSED TO SUPREME COURT - JURISDICTION OF SUPREME COURT - ARTS. 135, 374(2) OF THE CONSTITUTION - ABOLITION OF PRIVY COUNCIL JURISDICTION ACT (1949), SS. 2, 4(B), 5, 8.
Fact of the Case:

Petitioner sought cancellation of a decree granted to the respondent by the Order-in-Council dated November 25, 1949, insofar as it purported to operate on or include any right to the office of the Patilki and 11 Watan lands attached thereto. The lands were assigned as remuneration to the officiator for the time being under S. 23 of the Bombay Hereditary Offices Act, 1874 (the Act). The petitioner obtained a certificate prescribed under S. 10 of the Act and contended that the decree should be canceled.
Finding of the Court:

The Supreme Court held that the certificate issued by the Collector under S. 10 of the Act was valid and must be given effect to. The Court found that the properties in question were assigned as remuneration to the Patilki office and were governed by the provisions of the Act. The Court also found that if the certificate was duly issued under S. 10 of the Act, it made it obligatory on the court to cancel the decree in regard to the properties covered by the certificate.
Issues: 1. Whether the certificate issued by the Collector under S. 10 of the Act was valid. 2. Whether the properties in question were assigned as remuneration to the Patilki office and were governed by the provisions of the Act. 3. Whether the decree should be canceled in regard to the properties covered by the certificate.
Ratio Decidendi: 1. The Supreme Court held that the certificate issued by the Collector under S. 10 of the Act was valid. The Court found that the properties in question were assigned as remuneration to the Patilki office and were governed by the provisions of the Act. The Court also found that if the certificate was duly issued under S. 10 of the Act, it made it obligatory on the court to cancel the decree in regard to the properties covered by the certificate. 2. The Court found that the properties in question were assigned as remuneration to the Patilki office and were governed by the provisions of the Act. The Court also found that if the certificate was duly issued under S. 10 of the Act, it made it obligatory on the court to cancel the decree in regard to the properties covered by the certificate.
Final Decision: The petition was allowed and the decree in question in so far as it purported to operate on or include any right to the office of Patilki and watan lands attached thereto at Kirtgeri as enumerated in the certificate was canceled.

Judgment

GAJENDRAGADKAR, J. : This petition has been made under S. 10 of the Bombay Hereditary Offices Act, 1874 (hereinafter called the Act.), for cancellation of the decree granted to the respondent by the Order -in-Council dated November 25, 1949, in so far as the said decree purports to operate on or include any right to the office of the Patilki and 11 Watan lands attached thereto. These lands are situated at Kirtgeri in the Taluk of Gadag. They form part of a Watan and, according to the revenue records, they have been assigned as remuneration to the officiator for the time being under S. 23 of the Act. The petitioner has obtained a certificate prescribed under S. 10, and he contends that as a result of the said certificate this Court should cancel the decree as claimed by him in the petition.

2. It appears that the respondent had filed a suit against the petitioner in the Court of the 1st Class Sub-Judge at Dharwar (Civil Suit No. 18 of 1934) & in the said suit he had claimed partition and possession of the properties as an adopted son of Shiddangouda. These properties were and are in the possession of the petitioner. The trial court passed a decree in favour of the respondent. The petitioner then preferred an appeal, No. 182 of 1935, in the High Court of Bombay. His appeal was allowed and the decree passed by the trial court was reversed. The respondent then challenged the High Court decree and went up to the Privy Council in Appeal No. 11 of 1948*. His appeal was allowed, and the Privy Council held that the decree passed by the trial court should be restored. Accordingly an Order-in-Council was drawn up on 25-11-1949; under this order the respondent was entitled to recover by partition a half share in the properties in suit. He was also entitled to mesne profits, past and future, till the recovery of possession or three years and an enquiry was directed in that behalf. Amongst the properties in which the respondent had thus become entitled to claim a share are the 11 lands in question.

* (See AIR 1950 PC 24-Ed).

3. In due course the respondent filed an execution application Darkhast No. 41 of 1950, in the Court of the Subordinate Judge at Dharwar. The petitioner then contended that the 11 lands in question were governed by the provisions of the Act, they were assigned as remuneration to the office of the Patil, and as such they could not be partitioned. It was also urged on his behalf that in the original suit the respondent had not claimed any declaration that he was entitled to the office of Patil and that without such a claim the 11 lands in question could not be claimed by the respondent. In support of these pleas the petitioner relied upon the provisions of the Act contained in Ss. 7, 10, 11, 13, 24, 25 and 36.

4. Pending the execution proceedings the petitioner applied for the grant of the prescribed certificate under S. 10 of the Act, and a certificate was accordingly issued by the Collector addressed to the Civil Judge, Senior Division, Dharwar. Thereupon the said court acted upon the certificate and cancelled the execution process which had been issued against the Patilki-assigned property of Kirtgeri. The respondent challenged the said order before the Bombay High Court and his challenge was upheld by the said High Court. The High Court followed its own earlier Full Bench decision in Rachapa v. Amingouda, (1881) ILR 5 Bom 283 (FB), and held that the certificate issued by the Collector under S. 10 was invalid in that it was addressed not to the Privy Council which was the court which passed the decree but to the Civil Judge at Dharwar. In the result the order canceling the execution process which had been passed by the executing court was set aside and a direction was issued that the execution proceedings should proceed according to law.

5. Thereafter the petitioner applied for a reissue of a certificate under S. 10 and prayed that the certificate should be addressed to this Court as in the meanwhile the Privy Counc

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